P. v. Slater

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SEE DISSENTING OPINION
Filed 1/30/08 P. v. Slater CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS JAMES SLATER,
Defendant and Appellant.
C055031
(Super. Ct. No.
CM025384)
Defendant Thomas James Slater entered a negotiated plea of
no contest to one count of receiving stolen property (Pen. Code,
§ 496) and admitted a prior prison term enhancement (id.,
§ 667.5, subd. (b)) in exchange for dismissal of three other
charges. At the time of the plea, defendant acknowledged the
maximum term of imprisonment the court may impose would be four
years. The court thereafter denied probation and sentenced
defendant to state prison for four years.
Defendant appeals, contending imposition of the upper term
based on factors not determined by a jury beyond a reasonable

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doubt violated his rights under the Sixth and Fourteenth
Amendments to the United States Constitution. However, because
defendant failed to obtain a certificate of probable cause, we
conclude this contention is not properly before us. We
therefore dismiss the appeal.
F ACTS AND P ROCEEDINGS
In light of defendant’s no contest plea, the facts are
taken from the probation report.
Sometime between 4:30 and 10:30 p.m. on June 5, 2006, the
home of 86-year-old Robert M. was burglarized and approximately
$30,000 in cash was taken. Robert M. had known defendant for 14
years and had given him small amounts of money. He believed
defendant knew where he kept his money.
On July 20, the police searched defendant’s residence and
discovered 500 rounds of ammunition. Defendant later admitted
having recently stored firearms at his house. On a second
search of defendant’s residence, officers found counterfeit $50
and $100 bills and three envelopes containing 241, $20 bills,
$8,000, and 30, $100 bills. A witness told deputies defendant
told him he had taken the cash from Robert M.
Defendant was charged with theft from an elder or dependent
adult (Pen. Code, § 368, subd. (d)), receiving stolen property
(id., § 496, subd. (a)), possession of a firearm by a felon
(id., § 12021, subd. (a)(1)), and possession of ammunition by
one prohibited from possessing a firearm (id., § 12316, subd.

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(b)(1)). The complaint was thereafter amended to add an
enhancement for a prior prison term (id., § 667.5, subd. (b)).
Defendant entered a negotiated plea of no contest to the
single charge of receiving stolen property and admitted the
enhancement in exchange for dismissal of the other charges. At
the time, defendant acknowledged that, as a result of the plea,
he could be sentenced to a maximum sentence of four years.
At sentencing, defendant objected to imposition of the
upper term on the receiving stolen property charge on the basis
of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d
856] (Cunningham). The court nevertheless imposed the upper
term of three years for receiving stolen property plus an
enhancement of one year for the prior prison term, for a total
of four years. The court cited the following reasons for
choosing the upper term: the victim was particularly
vulnerable, the crime involved great monetary value, defendant
took advantage of a position of trust, defendant’s prior
convictions are numerous, defendant served a prior prison term,
defendant was on probation when he committed the offense, and
defendant’s performance on parole was unsatisfactory.
D ISCUSSION
Defendant contends the trial court violated his rights under the
Sixth Amendment to the United States Constitution by imposing the
upper term based on facts not submitted to the jury and proved beyond
a reasonable doubt.

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In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d
435] (Apprendi), the United States Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].)
In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]
(Blakely), the Supreme Court applied Apprendi to a state court
sentence. (Blakely, at p. 303 [159 L.Ed.2d at p. 413].) In
Cunningham, the Supreme Court applied Apprendi and Blakely to
California’s determinate sentencing law (DSL) and held that by
assigning to the trial judge the authority to find the facts
that expose a defendant to an upper term sentence, the DSL
violates the defendant’s Sixth and Fourteenth Amendment rights.
(Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864],
overruling on this point People v. Black (2005) 35 Cal.4th 1238,
vacated in Black v. California (Feb. 20, 2007) 549 U.S. ___ [167
L.Ed.2d 36].)
The People contend defendant’s Cunningham claim is not
cognizable on appeal because he failed to obtain a certificate
of probable cause. They argue defendant acknowledged as part of
his plea that the maximum penalty the court may impose is four
years and, therefore, his challenge to that sentence is a
challenge to the plea itself. We agree.
When a defendant enters a plea of guilty or no contest, he
may not challenge the validity of the plea on appeal unless he
“has sought, and the trial court has issued, a certificate of

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probable cause ‘showing reasonable constitutional,
jurisdictional, or other grounds going to the legality of the
proceedings.’” (People v. Emery (2006) 140 Cal.App.4th 560,
562; see Pen. Code, § 1237.5.) Only two types of issues may be
raised without a certificate of probable cause: “(1) search and
seizure issues for which an appeal is provided under [Penal
Code] section 1538.5, subdivision (m); and (2) issues regarding
proceedings held subsequent to the plea for the purpose of
determining the degree of the crime and the penalty to be
imposed.” (People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)
Normally, issues regarding sentencing decisions fall within
this second category and may be raised without a certificate of
probable cause. However, “‘a challenge to a negotiated sentence
imposed as part of a plea bargain is properly viewed as a
challenge to the validity of the plea itself’ and thus requires
a certificate of probable cause.” (People v. Shelton (2006) 37
Cal.4th 759, 766 (Shelton).)
In Shelton, supra, 37 Cal.4th 759, the defendant entered
into a plea agreement providing for dismissal of four of six
felony counts in return for the defendant’s plea of no contest
to the remaining two counts. The parties further agreed the
defendant would be sentenced to state prison for a term not to
exceed three years and eight months, a term less than the
maximum that could otherwise have been imposed. The defendant
was thereafter sentenced to state prison for three years and
eight months.

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The defendant appealed without obtaining a certificate of
probable cause, arguing his prison sentence violated Penal Code
section 654, the statutory prohibition against double
punishment. The high court held the defendant was required to
obtain a certificate of probable cause, because the issue raised
was effectively an attack on the validity of his plea. The
court explained that a negotiated plea agreement is a form of
contract to be interpreted according to general contract
principles. (Shelton, supra, 37 Cal.4th at p. 767.) Applying
those principles, the court explained: “[T]he specification of
a maximum sentence or lid in a plea agreement normally implies a
mutual understanding of the defendant and the prosecutor that
the specified maximum term is one that the trial court may
lawfully impose and also a mutual understanding that, absent the
agreement for the lid, the trial court might lawfully impose an
even longer term.” (Id. at p. 768.) A defendant may thereafter
raise a claim that the court abused its discretion in failing to
impose a sentence less than the agreed-upon lid. However, a
claim that the court lacked the legal authority to impose the
lid is a challenge to the plea itself and is precluded without a
certificate of probable cause.
In People v. Bobbit (2006) 138 Cal.App.4th 445 (Bobbit),
this court applied Shelton to a Blakely claim raised without a
certificate of probable cause. The defendant had entered into
an agreement whereby he pleaded no contest to two offenses and
admitted a prior serious felony conviction in exchange for
dismissal of other charges and a sentencing lid of 12 years and

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eight months. The trial court thereafter sentenced him to the
maximum, which included the upper term for one of the offenses.
(Bobbit, at pp. 447-448.)
We dismissed the appeal, explaining the plea agreement was
a mutual acknowledgement that the trial court had legal
authority to impose the sentence. (Bobbit, supra, 138
Cal.App.4th at p. 447.) We concluded: “[T]he plea agreement
did not preserve, either at sentencing or on appeal, the issue
that the court did not have the authority to impose an upper
term sentence in the absence of a jury finding of one or more
aggravating circumstance(s). Without a certificate of probable
cause, the appeal must be dismissed.” (Id. at p. 448, fn.
omitted.)
Although Shelton and Bobbit were decided before Cunningham,
there is nothing in the latter decision that would bring those
state court decisions into question. In Cunningham, the United
States Supreme Court concluded that “[b]ecause the DSL
authorizes the judge, not the jury, to find the facts permitting
an upper term sentence, the system cannot withstand measurement
against our Sixth Amendment precedent.” (Cunningham, supra, 549
U.S. at p. __ [166 L.Ed.2d at p. 876], fn. omitted.) In other
words, the question is whether, at the time of sentencing and
before the trial court makes any additional findings, the
defendant was properly subject to an upper term sentence. If
so, the trial court may consider any relevant factor in deciding
whether to impose the sentence. As explained by the State
Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black

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II): “[S]o long as a defendant is eligible for the upper term
by virtue of facts that have been established consistently with
Sixth Amendment principles, the federal Constitution permits the
trial court to rely upon any number of aggravating circumstances
in exercising its discretion to select the appropriate term by
balancing aggravating and mitigating circumstances, regardless
of whether the facts underlying those circumstances have been
found to be true by a jury.” (Id. at p. 813.) According to the
court: “[I]mposition of the upper term does not infringe upon
the defendant’s constitutional right to jury trial so long as
one legally sufficient aggravating circumstance has been found
to exist by the jury, has been admitted by the defendant, or is
justified based upon the defendant’s record of prior
convictions.” (Id. at p. 816.)
In Bobbit, we concluded a defendant is properly subject to
an upper term sentence by virtue of his agreement to an upper
term lid as part of the overall plea agreement. Where a
defendant has agreed to a sentencing lid, he has effectively
admitted the existence of one or more factors making him
eligible for the upper term. In effect, the defendant has
waived any Sixth Amendment rights associated with imposition of
a sentence up to the agreed maximum.
Defendant contends the present matter does not involve a
negotiated plea with a stipulated sentence or sentencing lid.
He argues the four-year term specified in the plea form he
signed was not a sentencing lid but the maximum that could be
imposed for the offense and enhancement at issue. He cites

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Shelton, supra, 37 Cal.4th at p. 768, where the state high court
observed: “[T]he specification of a maximum sentence or lid in
a plea agreement normally implies . . . a mutual understanding
that, absent the agreement for the lid, the trial court might
lawfully impose an even longer term.”
We disagree with the premise underlying defendant’s
argument that a sentencing lid cannot be a term of a plea
agreement if it is the maximum term that may be imposed for the
offense or offenses on which the defendant pleaded guilty or no
contest. A defendant charged with four offenses might enter
into a plea agreement permitting him to plead guilty to one
offense with a maximum punishment of six years in exchange for
dismissal of the other three charges and a sentencing lid of six
years. Another defendant charged with the same four offenses
might enter into a plea agreement permitting him to plead guilty
to two offenses with a maximum punishment of eight years in
exchange for dismissal of the other two charges and a sentencing
lid of six years. There is no reason in law or logic why the
two should be treated differently for purposes of enforcement of
the sentencing lid or the requirement of a certificate of
probable cause.
For the same reason, we also reject defendant’s assertion
the plea agreement in this matter did not involve a sentencing
lid. As explained in Shelton, a negotiated plea agreement must
be interpreted in accordance with general contract principles.
(Shelton, supra, 37 Cal.4th at p. 767.) At the time the plea
agreement was presented to the court, defendant acknowledged the

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maximum term he might receive on the plea would be four years.
In exchange for the plea, the prosecution dismissed three other
charges. If defendant had been tried and convicted on all four
charges, he would have faced a much greater sentence than the
four years he received. Under these circumstances, it may be
inferred the parties understood the four-year maximum was a term
of the agreement and, hence, defendant agreed to be subject to a
maximum sentence of four years in exchange for avoiding the risk
of an even greater punishment. By entering into the negotiated
agreement, defendant was deemed to have admitted that the facts
and the law would support a four-year term, subject only to a
proper exercise of judicial discretion at the time of
sentencing.
D ISPOSITION
The appeal is dismissed.
HULL , J.
I concur:
NICHOLSON , Acting P.J.

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ROBIE, J.
I respectfully dissent.
Relying on People v. Shelton (2006) 37 Cal.4th 759
(Shelton) and People v. Bobbit (2006) 138 Cal.App.4th 445, the
majority concludes that for defendant to challenge on appeal the
trial court’s imposition of the upper term sentence for
receiving stolen property, he had to obtain a certificate of
probable cause. I disagree. In my view, for the reasons stated
below, neither Shelton nor Bobbit are applicable to this case.
Accordingly, I would not dismiss this appeal, but would consider
it on its merits.
Defendant’s sole argument on appeal is that the trial court
violated his Sixth Amendment right to a jury trial -- as
recognized in Cunningham v. California (2007) 549 U.S. ___ [166
L.Ed.2d 856] -- by imposing an upper term sentence based on
findings not made by a jury. The People contend this argument
amounts to a challenge to the validity of defendant’s plea and
cannot be considered on appeal without a certificate of probable
cause. As I will explain, the People are mistaken.
“Penal Code section 1237.5 provides that a defendant may
not appeal ‘from a judgment of conviction upon a plea of guilty
or nolo contendere’ unless the defendant has applied to the
trial court for, and the trial court has executed and filed, ‘a
certificate of probable cause for such appeal.’” (Shelton,
supra, 37 Cal.4th at p. 766.) Despite this broad statutory
language, the Supreme Court has recognized two types of issues
that may be raised on appeal from a guilty or no contest plea

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without a certificate of probable cause: “issues relating to
the validity of a search and seizure, for which an appeal is
provided under [Penal Code] section 1538.5, subdivision (m), and
issues regarding proceedings held subsequent to the plea for the
purpose of determining the degree of the crime and the penalty
to be imposed.” (People v. Buttram (2003) 30 Cal.4th 773, 780.)
While the phrasing of the second exception to the
requirement of a certificate of probable cause might suggest
that any sentencing issue can be raised on appeal without a
certificate, that is not the case. Rule 8.304(b)(4)(B) of the
California Rules of Court clarifies that a defendant need not
obtain a certificate of probable cause if the appeal is based on
“[g]rounds that arose after entry of the plea and do not affect
the plea’s validity.” (Italics added.) Thus, to the extent
what appears to be merely a sentencing issue actually amounts to
a challenge to the validity of the plea, that issue cannot be
raised on appeal without a certificate of probable cause.
This principle is exemplified by Shelton, where the Supreme
Court concluded that a challenge to the trial court’s legal
authority to impose a “lid” sentence pursuant to a plea
agreement required a certificate of probable cause. (Shelton,
supra, 37 Cal.4th at p. 763.) In Shelton, the defendant agreed
to “plead no contest to two counts--stalking in violation of a
protective order . . . and making a criminal threat . . .--for
which [the] defendant would be sentenced to a prison term not to
exceed three years and eight months.” (Id. at pp. 763-764.) At
the time of the plea, the court explained that the defendant

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could “‘argue for something less than three years and eight
months,’” but would receive a prison sentence. (Id. at p. 764.)
At the sentencing hearing, “[d]efendant’s attorney argued
that the multiple punishment prohibition of Penal Code section
654 applied to the two counts to which defendant had pleaded no
contest because ‘[t]he threat occurred at the time of the
stalking and is also one of the elements of the stalking.’”
(Shelton, supra, 37 Cal.4th at p. 764.) Notwithstanding this
argument, the trial court imposed the middle term of three years
on the stalking charge and a consecutive eight-month term on the
criminal threat charge. (Id. at pp. 764-765.)
On review, the Supreme Court decided that defendant needed
a certificate of probable cause to “raise on appeal his claim of
trial court sentencing error under Penal Code section 654.”
(Shelton, supra, 37 Cal.4th at pp. 763, 766.) The court
reasoned “that inclusion of a sentence lid implies a mutual
understanding and agreement that the trial court has authority
to impose the specified maximum sentence and preserves only the
defendant’s right to urge that the trial court should or must
exercise its discretion in favor of a shorter term.” (Id. at
p. 763.) “Because the plea agreement was based on a mutual
understanding (as determined according to principles of contract
interpretation) that the court had authority to impose the lid
sentence, defendant’s contention that the lid sentence violated
the multiple punishment prohibition of Penal Code section 654
was in substance a challenge to the plea’s validity and thus

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required a certificate of probable cause, which defendant failed
to secure.” (Shelton, at p. 769.)
Three months after Shelton, in People v. Bobbit, supra, 138
Cal.App.4th at page 445, a panel of this court applied the
reasoning in Shelton to a challenge to “the trial court’s
authority to impose an upper term sentence in light of Blakely
v. Washington (2004) 542 U.S. 296, [159 L.Ed.2d 403, 124 S.Ct.
2531]” -- the decision that preceded Cunningham. (Bobbit, at
p. 447.) In Bobbit, the defendant “pled no contest to one count
of sale of cocaine [citation] and one count of offering to sell
cocaine [citation] and admitted that he had suffered a prior
serious felony conviction,” subject to “a sentencing lid of 12
years and eight months.” (Ibid.) The trial court sentenced the
defendant to the lid, apparently by using an upper term
sentence. (Ibid.) On appeal, this court concluded that because
“the plea agreement did not preserve, either at sentencing or on
appeal, the issue that the court did not have the authority to
impose an upper term sentence in the absence of a jury finding
of one or more aggravating circumstance(s),” the appeal had to
be dismissed because the defendant did not obtain a certificate
of probable cause. (Id. at p. 448.)
Relying on Bobbit and Shelton, the People argue here -- and
the majority agrees -- that defendant’s challenge to the
imposition of the upper term sentence requires a certificate of
probable cause. I do not agree.
Contrary to the majority opinion (maj. opn., p. 8),
defendant contends and I agree that in this case there was

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neither a “lid” nor a stipulated sentence. As part of his plea,
the defendant initialed an item on the plea form that provided
“I understand that I may serve this maximum sentence as a result
of my plea: four (4) years in state prison . . . .” In
response to an inquiry from the court whether he understood the
penalties and consequences of the plea by initialing the form
defendant responded, “Yes, sir.”
Shelton simply does not apply in this case, where there is
neither a “lid” nor a stipulated sentence. Defendant is not
challenging the plea’s validity. In this case, the defendant’s
argument is that the trial court violated his Sixth Amendment
rights by imposing the upper term sentence based on aggravating
circumstances that did not pertain to any prior convictions and
that were not admitted by him or found by a jury. As in this
case, “[W]hen the claim on appeal is merely that the trial court
abused the discretion the parties intended it to exercise, there
is, in substance, no attack on a sentence that was ‘part of
[the] plea bargain.’ [Citation.] Instead, the appellate
challenge is one contemplated, and reserved, by the agreement
itself.” (People v. Buttram, supra, 30 Cal.4th. at p. 786,
italics omitted.)
For the foregoing reasons, I would address defendant’s
appeal on its merits.
ROBIE , J.

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